Court of Appeal for Ontario

Date: 2019-06-05 Docket: C66177 Judges: Feldman, MacPherson and Simmons JJ.A.

Parties

Between

Lauren Holly Applicant (Respondent)

and

Francis Greco Respondent (Appellant)

Counsel

Mathew Fordjour, for the appellant James B. C. Edney, for the respondent

Heard: May 27, 2019

On appeal from: The order of Justice Michael R. Gibson of the Superior Court of Justice, dated October 18, 2018, with reasons reported at 2018 ONSC 6219.

Reasons for Decision

Background and Motion to Strike

[1] The appellant appeals from the order of Gibson J. dated October 18, 2018 (the "October Order") made on motion by the respondent to strike the appellant's pleadings for failure to pay child support in accordance with the order of Miller J. dated June 7, 2018 (the "June Order"). On the return of the motion, counsel for the appellant requested an adjournment to allow time to file responding material. That request was denied. The October Order was then made striking the appellant's Answer and Claim for his deliberate decision not to pay the child support recently ordered by the court in the June Order.

Facts Leading to the Motion

[2] The background to the motion was the June Order made on motion for interim child support of $12,365 per month for two of the children, retroactive to January 1, 2018, as well as $9,668 per month for September 1, 2017 to December 31, 2017. That order was made on June 7, 2018 following a contested motion. Following receipt of the June Order, the appellant paid a lump sum representing the past amounts but advised that he was only going to pay $2,365 per month until January 2019, when he would make up the difference with interest. The reason for this proposed renegotiation of the June Order was that he received his employment remuneration in a lump sum at the beginning of the year. Although the respondent objected, the appellant followed through on his intention for July, August and September. He neither appealed the June Order nor did he seek to vary it.

[3] As a result, counsel for the respondent initiated the motion to strike the pleadings for deliberate failure to comply with the June Order for interim child support. Counsel agreed on a return date of October 4, 2018. Dates in September were avoided because counsel for the appellant would be away for part of September.

[4] The respondent's material was served on September 19, 2018 while counsel was away. When he returned on October 1, counsel tried to get the responding material in place but was not able to do so before the return of the motion. He therefore asked for an adjournment until later in October to file responding material.

Motion Judge's Decision

[5] The request for an adjournment was denied. The motion judge's view was that an adjournment would unfairly benefit the appellant by extending and facilitating his "ongoing calculated non-compliance": Holly v. Greco, 2018 ONSC 6219, at para. 19.

[6] In considering the requested remedy of striking the appellant's pleadings, the motion judge first observed that the appellant has high income based on his sworn financial statements ($984,687 in 2018 for support purposes), which refuted his financial hardship claim that he could not afford to pay more than $2,365 per month. Second, he noted that the appellant neither appealed nor moved to vary the June Order, and instead "arrogated to himself the privilege of determining how much he would pay": para. 27. He then referred to the case law that cautions that pleadings should only be struck out in exceptional circumstances where no other remedy would suffice: see Kovachis v. Kovachis, 2013 ONCA 663, 367 D.L.R. (4th) 189; Wouters v. Wouters, 2018 ONCA 26, 6 R.F.L. (8th) 305; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D.L.R. (4th) 328; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374; Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6; Carpenter v. Carpenter, 2016 ONCA 313.

[7] In applying that case law, the motion judge stated that the appellant never gave a valid reason either to the respondent or to counsel or to the court in submissions for not complying with the June Order. He therefore found the appellant's conduct to be flagrant, wilful and a calculated disobedience of a court order, which deprives children of child support. He therefore concluded that this was one of the cases where the appellant's egregious conduct required that the pleadings be struck out.

Appeal Arguments

[8] On appeal, the appellant submits that the motion judge had a number of avenues open, including to grant a brief adjournment on terms in order to allow the appellant to file material and stave off the remedy of striking the pleadings.

Court of Appeal's Analysis

[9] We do not accept this submission. While the motion judge could have given the appellant further time, he did not view it as unfair not to do so in the circumstances where the appellant had taken matters into his own hands to deliberately not comply with a court order and not seek the sanction of the court to do so. The motion judge's decision not to grant the adjournment was a discretionary one. Our case law is clear that without a clear error of law or misperception of the facts, there is no basis for this court to interfere with a judge's decision whether to grant an adjournment: see e.g. Khimji v. Danani (2004), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A. dissenting, but not on this point). This is especially the case in family law matters where motion and trial judges' case management role is so crucial to the process.

[10] Similarly with respect to the remedy granted. The motion judge considered the record and the case law and concluded that this was one of the exceptional and egregious cases that fits within the test for striking pleadings. While we see no basis to interfere, we agree with the approach recently taken by this court in Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, where the court upheld a similar order striking pleadings, but exercised its discretion under Rule 1(8.4) of the Family Law Rules, O. Reg. 114/99, to vary the participation rights of the party whose pleadings were struck out. Pepall J.A. explained that the intent was to "[permit] the husband to test the wife's claims and also [operate] to provide the court with a richer record on which to base its decision" at the trial: para. 55.

Disposition

[11] In this case, the appellant's Answer and Claim were struck out by the motion judge. The court was advised at the opening of the appeal that the appellant has now paid the arrears and is complying with the child support order.

[12] So long as the appellant continues to comply, he may be entitled to participate in the trial and shall be given notice. The scope of his participation will be as permitted by the trial judge.

[13] The appeal is allowed to that extent.

K. Feldman J.A. J.C. MacPherson J.A. Janet Simmons J.A.